[Cite as State v. Collins,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : : Case No. 13CA27 v. : : DECISION AND BRITTANY N. COLLINS, : JUDGMENT ENTRY : Defendant-Appellant. : Released: 09/23/2014

APPEARANCES: Loribeth Kowalski, Circleville, Ohio for Appellant.

Judy C. Wolford, Pickaway County Prosecutor, Circleville, Ohio for Appellee.

Hoover, J.:

{¶ 1} Appellant Brittany N. Collins appeals her conviction and sentence from the

Pickaway County Court of Common Pleas. A jury found Collins guilty of, among other things,

two counts of Aggravated Robbery and one count of Complicity to Robbery. The trial court

sentenced Collins to five years in prison on each count of Aggravated Robbery and twelve

months for the count of Complicity. The trial court ordered the terms to be served consecutively

for an aggregate term of ten years and twelve months in prison. Here on appeal, Collins argues

that her constitutional right to due process was violated by improper eyewitness identification

procedures. She also contends that the trial court failed to make the required findings to support

the imposition of consecutive sentences. Lastly, Collins asserts that her defense counsel was

ineffective for failing to object to these errors.

{¶ 2} In July 2012, a series of three robberies occurred in Pickaway County. The first

took place at the 56 Mini Mart, where Miriam Brumfield was working. A female, wearing all Pickaway App. No. 13CA27 2

black clothing, a hat, and sunglasses entered the store and demanded money from Brumfield’s

cash drawer. Brumfield complied and handed over the money. The female then instructed

Brumfield to go to the bathroom and count to 100.

{¶ 3} A second robbery occurred two days later at the Tarlton Market. A female again

wearing all black clothing, a hat, and sunglasses entered the store. The female spoke to an

employee at the store, Cody Smith. The female showed Smith a gun in her waistband and

demanded money. Smith complied and handed the female the money from the cash drawer. The

female again told Smith and another employee to go to the bathroom and lock the doors.

{¶ 4} Two days after the second robbery, Darci Leaker, an employee of 56 Mini Mart,

observed a female enter the 56 Mini Mart wearing basketball shorts and a tank top. Leaker took

notice of the female’s numerous tattoos, her teeth, and her nails. Leaker described the female’s

nails as being chewed really short. Leaker saw the female exit the store and get into the

passenger side of a silver four door Chevrolet Cobalt. Leaker noticed damage to the right side of

the vehicle. Based on the surveillance video she viewed from the robbery, Leaker believed the

female was the one who robbed the store four days earlier.

{¶ 5} Leaker called the sheriff’s department, reported that the girl who robbed the store a

few days earlier was there and just left in a Chevrolet Cobalt. Next, Leaker walked outside to

smoke a cigarette when a man walked up to her and demanded she get off the phone and give

him everything out of the cash drawer. After she complied, the man demanded she go into the

bathroom. Leaker testified that the robbery took place within two minutes of the girl leaving.

{¶ 6} Detective John Strawser handled all three robbery investigations. After each

robbery, he collected statements, evidence, and reviewed the stores’ surveillance videos.

Detective Strawser sent the best images from a surveillance video, showing the Cobalt and the Pickaway App. No. 13CA27 3

female, to Central Ohio Investigators Network (COIN). Detective Strawser identified similarities

between the first two robberies such as the female suspect’s clothes, hat, sunglasses, body type

and how each of the employees were told to go to the bathroom. The department contacted local

papers and crime stoppers, offering a $2,000 reward for information relating to the robberies. An

anonymous tip led Detective Strawser to investigate the Facebook page of Brittany Guess, the

appellant here, but listed with a different last name.

{¶ 7} Next, Detective Strawser, another detective, and members of the Sheriff’s

department traveled to an apartment complex, where they spoke to the complex’s manager.

Detective Strawser learned the address of Collins’s father, Charles Guess. Upon arrival at the

address, near Logan Ohio, they noticed appellant Brittany Collins getting out of a silver

Chevrolet Cobalt, matching the vehicle in the images from the surveillance photos. Law

enforcement advised Collins of her Miranda rights. Detective Strawser obtained signed waivers

from Brittany Collins and an agreement to search without a warrant from her father Charles

Guess.

{¶ 8} Detective Strawser took pictures of Collins, along with focused shots of her tattoos

and teeth. The detectives also investigated a few hats given to them by Charles Guess. Detective

Strawser photographed a hat that was later identified by eyewitnesses Brumfield and Smith as

the hat worn by the perpetrator during the robberies. A few days later, an arrest warrant was

issued for appellant Collins.

{¶ 9} At trial, the State presented the eyewitnesses from the first two robberies,

Brumfield and Smith. During their testimonies, both witnesses provided a similar description of

the robber and identified Collins as the perpetrator of the robberies. They were not shown or

involved in any pretrial identification procedure such as a photo array or a traditional lineup. Pickaway App. No. 13CA27 4

Collins’s trial counsel did not object to the in-court identifications or file a motion to suppress

their testimony.

{¶ 10} After the trial concluded, the jury found Collins to be guilty of the following

offenses: Count One, Aggravated Robbery, a first degree felony, in violation of R.C.

2911.01(A)(1); Count 2, Theft, a first degree misdemeanor, in violation of R.C. 2913.02(A)(4);

Count 3, Aggravated Robbery, a first degree felony, in violation of R.C. 2911.01(A)(1); Count 4,

Grand Theft, a third degree felony, in violation of R.C. 2913.02(A)(4); Count 5, Complicity to

Robbery, a third degree felony, in violation of R.C. 2923.03(A)(2); Count 6, Complicity to Theft,

a first degree misdemeanor in violation of R.C. 2923.03(A)(2). After merging Counts 2, 3, and 6,

the trial court sentenced Collins to five years in prison for Counts 1and 2 and twelve months for

Count 5. The court ordered the sentences to be served consecutively to one another for a total of

ten years and twelve months. Collins then timely filed this appeal.

{¶ 11} We will address Collins’s first and third assignments of error, before discussing

Collins’s second, fourth and fifth assignments of error, which all concern ineffective assistance

of counsel arguments.

Appellant’s First Assignment of Error:

IN VIOLATION OF DUE PROCESS, MS. COLLINS WAS IDENTIFIED BY

THE KEY EYEWITNESSES WHILE THE STATE WAS USING

IDENTIFICATION PROCEDURES THAT WERE UNNECESSARILY

SUGGESTIVE

{¶ 12} In her first assignment of error, Collins argues that the State’s identification

procedures involving witnesses Miriam Brumfield and Cody Smith were unnecessarily Pickaway App. No. 13CA27 5

suggestive. Collins argues that these eyewitness identifications deprived her of the constitutional

right to due process of law; and thus her conviction must be reserved.

{¶ 13} Initially, we note that Collins failed to object to the identification testimony of

either Brumfield or Smith. Collins also failed to file a motion to suppress the identification

evidence. Thus, we can recognize the error only if it constitutes plain error. “To constitute plain

error, a reviewing court must find (1) an error in the proceedings, (2) the error must be a plain,

obvious or clear defect in the trial proceedings, and (3) the error must have affected ‘substantial

rights’ (i.e., the trial court’s error must have affected the trial’s outcome).” State v. Dickess,

,

,

(4th Dist.), citing State v. Hill,

,

(2001), and State v Barnes,

, 27,

,

. “Furthermore, notice of plain error must be taken with the utmost caution, under

exceptional circumstances, and only to prevent a manifest miscarriage of justice.”

citing

State v. Landrum,

,

(1990), and State v. Long,

,

(1978), paragraph three of the syllabus. “A reviewing court should

notice plain error only if the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings.”

{¶ 14} Generally, a trial court must suppress a pretrial identification of a suspect if the

confrontation was unnecessarily suggestive of the suspect's guilt and the identification was

unreliable under the circumstances. State v. Waddy,

,

(1992); State v. Bell, 1st Dist. Hamilton No. C030726,

, ¶ 16. Suggestive

identification procedures are unreliable if they create a substantial likelihood of

misidentification.

; State v. Smith, 1st Dist. Hamilton Nos. C–

080712 and C–090505, 2009–Ohio–6932, ¶ 16. Ohio courts employ a two-part test to evaluate Pickaway App. No. 13CA27 6

the admissibility of an eyewitness identification. State v. Gavin,

,

,

(4th Dist.). “[T]he first question is whether the identification

procedure was unnecessarily suggestive.” State v. Mount, 4th Dist. Ross No. 11CA3297, 2012-

Ohio-4119, ¶ 7. “[I]f the procedure is deemed unnecessarily suggestive, the next question

becomes whether the identification was unreliable under the totality of the circumstances, i.e.

whether the suggestive procedure created a ‘very substantial likelihood of misidentification.’ ”

quoting Garvin at ¶ 25, quoting

.

{¶ 15} The defendant bears the burden of proving both prongs of the test. Manson v.

Brathwaite,

,

,

(1977); State v. Smith, 1st Dist.

Hamilton Nos. C080712 and C090505,

, ¶ 16. “The factors to consider in

determining reliability include: ‘* * * (1) the witness's opportunity to view * * * the defendant

during the crime, (2) the witness's degree of attention, (3) the accuracy of the witness's prior

description of the suspect, (4) the witness's certainty, and (5) the time elapsed between the crime

and the identification.’ ” State v. Thompson, 4th Dist. Vinton No. 12CA688,

, ¶

14 quoting Garvin at ¶ 25; Neil v. Biggers,

,

,

(1972).

{¶ 16} The State admits, and we agree, that the first prong of the test is met simply by the

nature of the proceeding. An in-court identification typically occurs under circumstances which

suggest the identity of the defendant. State v. Monford,

,

(10th Dist. 2010). See also State v. Mikolaj, 7th Dist. Mahoning No. 05MA157,

; State v. Johnson,

,

,

. In this

case, there were no pretrial lineups or photo arrays. Brumfield first identified Collins as the

offender at a pretrial hearing, and again during the actual trial. Smith identified Collins as the Pickaway App. No. 13CA27 7

perpetrator in court after viewing her picture in a local newspaper for being arrested and accused

of committing the subject crimes. During direct examination of both witnesses, the State

presented photo exhibits of the items recovered at Collins’s residence, such as the hat, a picture

depicting Collins’s face and teeth, pictures of Collins’s tattoos, and pictures from the stores’

video surveillance.

{¶ 17} Brumfield described the perpetrator’s appearance as a female with yellowed teeth

and chewed fingernails wearing dark clothing, sunglasses, and a hat. Brumfield identified the hat

and teeth, depicted in the State’s photos of Collins, as belonging to the perpetrator she

encountered during the robbery. Smith described the perpetrator as wearing all black clothing, a

black hat with camouflage on it, and sunglasses. The State asked Smith if he could identify the

person who robbed him that evening. Smith identified Collins as the perpetrator. Smith cited

Collins’s cheekbones, chin and skin tone as the attributes he recognized.

{¶ 18} Now we must determine the reliability of the two witness’s identification to

determine whether a substantial likelihood of misidentification existed. Mount, supra, at ¶ 7. The

reliability of Brumfield’s identification is evaluated by the aforementioned five factors. For the

first factor, the witness’s opportunity to view the defendant, the evidence demonstrates that

Brumfield and the perpetrator had a face-to-face interaction, across the store’s counter as the

robbery transpired. Brumfield believed that Collins was in the store the day prior to the robbery.

Brumfield testified that two of Collins’s tattoos, depicted in State exhibits, matched tattoos she

saw on a woman who was in the store a day earlier. Brumfield also explained that she recognized

the robber’s teeth from the person who was in the store a day before. Brumfield told Detective

Strawser that the female she saw before had a flowered tattoo on her back and a tattoo on her

forearm. Pickaway App. No. 13CA27 8

{¶ 19} For the second factor, the witness’s degree of attention, Brumfield testified to the

perpetrator’s physical characteristics such as the female’s build, her teeth, and her fingernails.

Brumfield also described the perpetrator’s clothing and identified the hat that was photographed

at Collins’s residence as the one worn by the robber. For the third factor, the accuracy of the

description, captured images from the store’s video surveillance were presented as evidence. The

images show the perpetrator clothed in all black and wearing a hat similar to the one depicted in

the State’s exhibit.

{¶ 20} For the fourth factor, the witness’s level of certainty, Brumfield maintained a

strong conviction that Collins was the one who robbed the store. Lastly, we must consider the

amount of time between the crime and the identification. This factor weighs more favorably for

Collins since it was not until a pretrial hearing that Brumfield identified Collins as the offender.

As mentioned numerous times before, no investigatory photo array or lineup took place.

{¶ 21} Given these facts, we conclude that Brumfield’s identification was not unreliable

under the totality of the circumstances; thus the procedure did not create a “substantial likelihood

of misidentification.” Mount, supra, at ¶ 7. Pursuant to our plain error standard of review, we do

not find that Brumfield’s identification affected the fairness, integrity, or public reputation of

judicial proceedings. The trial court did not violate Collins’s rights to due process when it

allowed Brumfield to testify and identify her as the offender.

{¶ 22} We must also evaluate Cody Smith’s identification of Collins as the robber of the

store where he was working on July 24, 2012. Like the identification made by Brumfield, Smith

did not pick Collins out of a photo array or lineup, but identified her at trial. Smith came forward

to testify based largely upon his involvement with the robbery but also because he saw a photo of Pickaway App. No. 13CA27 9

Collins in a local newspaper after she had been arrested on suspicion that she committed the

robbery.

{¶ 23} Smith described the woman who entered the store as: “dressed in all black, long

sleeves, and has a hat on, it was black, it has some camo on it, and sunglasses, and its night

time.” Smith testified that he and the woman had a conversation that ended when she showed

him a gun in her waistband, demanding the money from his register. Smith also testified that the

person had her hair tucked under her hat but he could see some blonde hair poking out. Smith

identified Collins as the person who robbed the store, stating that although the robber kept her

sunglasses on the entire time, he recognized Collins’s cheek bones, chin and skin tone.

{¶ 24} Like the identification by Brumfield, Smith’s identification occurred under

circumstances suggesting the identity of the offender. Therefore, the first prong of the

identification admissibility test is met, as the identification was unnecessarily suggestive. By

employing the five factors previously cited, we must determine the reliability under the totality

of the circumstances of Smith’s identification.

{¶ 25} First, Smith’s interaction with the perpetrator was face to face, across the store’s

counter for approximately five minutes. Like Brumfield, Smith testified regarding the offender’s

clothing and the hat she wore during the robbery. Smith described the perpetrator as having her

hair tucked under her hat, but “some blond was poking out from the hat.” Defense counsel

questioned Smith’s description of her hair color, claiming Collins’s hair is actually brown.

Pictures of Collins, entered as exhibits, depicted her as a brunette. During his direct examination,

Smith did not express any doubts in his identification of Collins. However, during cross

examination, Collins’s trial counsel asked Smith: “Would it be concerning because she [Collins] Pickaway App. No. 13CA27 10

doesn’t have blond highlights?” Smith responded: “A little bit.” Lastly, as with Brumfield’s in-

court identification, it came at a significantly later time after the crime was committed.

{¶ 26} Collins points out that Smith identified her only after seeing her picture in the

local paper, after she was charged with the robberies. Smith admitted as much on cross-

examination stating: “When I saw the picture in the Circleville Herald as the one being caught, I

could tell it was her.” However, if no state action was involved in the pretrial exposure to a

newscast showing the defendant's picture, any suggestiveness goes to the weight and credibility

of the witness's testimony, not to its admissibility, and is best addressed on cross examination.

State v. Fuller, 7th Dist. Mahoing No. 12MA185 ,

; State v. Ware, 10th

Dist. Franklin No. 00AP43,

; Monford,

, 2010-Ohio-

4732,

(10th Dist.) at ¶ 55.

{¶ 27} Here, Collins’s trial counsel addressed the newspaper on cross-examination.

Therefore, Collins’s trial counsel was afforded the opportunity to impeach the credibility of

Smith’s identification in front of the jury. We again conclude that Smith’s identification was not

unreliable under the totality of the circumstances; thus the identification did not result in a

“substantial likelihood of misidentification.” Mount, supra, at ¶ 7. Since we have found no plain

error in the identifications of Collins by Brumfield or Smith, we overrule Collin’s first

assignment of error.

Appellant’s Third Assignment of Error

THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES

IN VIOLATION OF OHIO REVISED CODE 2929.14(C)(4) AND 2929.41(A),

EFFECTIVE SEPTEMBER 30, 2011, WHICH REQUIRES JUDICIAL FACT

FINDING TO ESTABLISH A FOUNDATION FOR A CONSECUTIVE Pickaway App. No. 13CA27 11

SENTENCE AND THUS TO PROVIDE APPELLATE REVIEW OF SAID

SENTENCE

{¶ 28} In her third assignment of error, Collins argues that the trial court failed to identify

the findings required in R.C. 2929.14(C), namely that consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and that consecutive sentences are

not disproportionate to the danger the offender poses to the public.

{¶ 29} We review a felony sentence under the standard found in R.C. 2953.08(G)(2).

State v. Bever, 4th Dist. Washington No. 13CA21,

; State v. Baker, 4th Dist.

Athens No. 13CA18,

. R.C. 2953.08(G)(2) provides two grounds for an

appellate court to overturn the imposition of consecutive sentences: (1) the appellate court, upon

its review, clearly and convincingly finds that “the record does not support the sentencing court's

findings” under R.C. 2929.14(C)(4); or (2) the sentence is otherwise clearly and convincingly

contrary to law. The appellate court's standard of review is not whether the sentencing court

abused its discretion. See Bever at ¶ 14; R.C. 2953.08(G)(2).

{¶ 30} R.C. 2929.14(C)(4) sets forth certain findings that a trial court must make prior to

imposing consecutive sentences. Bever at ¶ 15. State v. Black, 4th Dist. Ross No. 12CA3327,

. That is, under Ohio law, unless the sentencing court makes the

required findings set forth in R.C. 2929.14(C)(4), there is a presumption that sentences are to run

concurrently.

{¶ 31} Under R.C. 2929.14(C)(4), a sentencing court must engage in a three-step analysis

and make certain findings before imposing consecutive sentences. Black at ¶ 57; State v. Clay,

4th Dist. Lawrence No. 1 1CA23,

; State v. Howze, 10th Dist. Franklin

Nos. 13AP386 & 13AP387,

. Specifically, the sentencing court must find Pickaway App. No. 13CA27 12

that (1) “the consecutive service is necessary to protect the public from future crime or to punish

the offender”; (2) “consecutive sentences are not disproportionate to the seriousness of the

offender's conduct and to the danger the offender poses to the public”; and (3) one of the

following:

(a) The offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed pursuant

to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-

release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or more

courses of conduct, and the harm caused by two or more of the multiple offenses

so committed was so great or unusual that no single prison term for any of the

offenses committed as part of any of the courses of conduct adequately reflects

the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the offender.

R.C. 2929.14(C)(4).

{¶ 32} The Supreme Court of Ohio recently settled the issue of when and where

the trial court must state the required findings in order to sentence an offender to

consecutive sentences:

When imposing consecutive sentences, a trial court must state the required

findings as part of the sentencing hearing, and by doing so it affords notice to the

offender and to defense counsel. See Crim.R. 32(A)(4). And because a court

speaks through it journal, State v. Brooks,

,

, Pickaway App. No. 13CA27 13

, the court should also incorporate its statutory findings in

the sentencing entry.

State v. Bonnell, Slip Opinion, No.

.

While the sentencing court is required to make these findings, it is not required to give reasons

explaining the findings. Id. at ¶ 27; Howze at ¶ 18; State v. Stamper, 12th Dist. Butler No.

CA201208166,

. Furthermore, the sentencing court is not required to recite

“a word-for-word recitation of the language of the statute.” Bonnell at 29. “[A]s long as the

reviewing court can discern that the trial court engaged in the correct analysis and can determine

that the record contains evidence to support the findings, consecutive sentences should be

upheld.”

A failure to make the findings required by R.C. 2929.14(C)(4) renders a consecutive

sentence contrary to law. Bonnell at ¶ 34; Stamper at ¶ 23; State v. Nia, 8th Dist. Cuyahoga No.

99387, 2013–Ohio–5424, ¶ 22. The findings required by the statute must be separate and distinct

findings; in addition to any findings relating to the purposes and goals of criminal sentencing.

Nia at ¶ 22.

{¶ 33} Here the trial court made the following statements at the sentencing hearing:

THE COURT: THE COURT MAKES A FINDING THAT BASED ON THE

CONDUCT OF THE DEFENDANT AND THE SERIOUSNESS OF THESE

OFFENSES, ARE CONSECUTIVE SENTENCES, AND IS NECESSARY TO

PROTECT THE PUBLIC FROM FUTURE CRIME AND TO ADEQUATELY

PUNISH THE OFFENDER, MISS COLLINS.

THE COURT ALSO FINDS THAT AT LEAST TWO OF THE MULTIPLE

OFFENSES WERE COMMITTED AS PART OF ONE OR MORE COURSES

OF CONDUCT AND THE HARM CAUSED BY TWO OR MORE OF Pickaway App. No. 13CA27 14

MULTIPLE OFFENSES SO COMMITTED WAS SO GREAT OR UNUSUAL

THAT NO SINGLE PRISON TERM FOR ANY OF THE OFFENSES

COMMITTED AS PART OF ANY OF THE COURSE OF CONDUCT

ADEQUATELY REFLECTS THE SERIOUSNESS OF THE OFFENDER’S

CONDUCT.

It is clear from these statements that the court made two of the three required findings. In the first

paragraph of the above-cited text, the court found “the consecutive service is necessary to protect

the public from future crime or to punish the offender.” The court also included, verbatim, one of

the three findings (great or unusual harm) from R.C. 2929.14(C)(4)(a)-(c).

{¶ 34} However, the court does not recite verbatim the finding that “consecutive

sentences are not disproportionate to the seriousness of the offender's conduct and to the danger

the offender poses to the public.” In the first sentence of the above-cited text, the court references

the defendant’s conduct and the seriousness of the offenses, but there is no finding that the

issuance of consecutive sentences is not disproportionate considering those two details. It

appears the trial court may have incorrectly spoke or some confusion arose considering the

language of the first paragraph.

{¶ 35} We are aware that the law does not require the trial court to have a “word-for-

word recitation of the language of the statute,” but there still remains an omission of a finding

based upon the sentence and its disproportionality with the defendant’s conduct and the danger

the defendant poses to the public.

. Also, we are aware that the trial court’s

Entry of Sentence, time stamped November 6, 2013, adequately expresses all the correct and

necessary findings for the imposition to consecutive sentences.

{¶ 36} However, the trial court must make the findings mandated by R.C. 2929.14(C)(4) Pickaway App. No. 13CA27 15

at the sentencing hearing and also incorporate those findings in its sentencing entry. Bonnell,

. Here, we cannot discern from the sentencing hearing transcript that the

trial court addressed the proportionality of consecutive sentences to the seriousness of Collins’s

conduct and the danger she posed to the public. See

. Accordingly, we must

sustain Collins’s third assignment of error and remand this case to the trial court so it can make

the necessary findings to impose consecutive sentences.

Appellant’s Second Assignment of Error:

TRIAL COUNSEL PROVIDED CONSTITUTIONALLY INEFFECTIVE

ASSISTANCE WHEN HE FAILED TO OBJECT TO THE EYEWITNESS

IDENTIFICATIONS OR REQUEST JURY INSTRUCTION CONCERNING

THE UNRELIABILITY OF IDENTIFICATIONS.

Appellant’s Fourth Assignment of Error:

TRIAL COUNSEL PROVIDED CONSTITUTIONALLY INEFFECTIVE

ASSISTANCE WHEN HE FAILED TO OBJECT TO THE TRIAL COURT’S

ERRONEOUS IMPOSITION OF CONSECUTIVE SENTENCES.

Appellant’s Fifth Assignment of Error:

THE CUMULATIVE EFFECT OF THE ERRORS MADE BY TRIAL

COUNSEL DENIED MS. COLLINS HER CONSTITUTIONAL RIGHT TO

THE EFFECTIVE ASSISTANCE OF COUNSEL AND A FAIR TRIAL.

{¶ 37} We will address Collins’s ineffective assistances assignments of error one at a

time. To establish constitutionally ineffective assistance of counsel, a defendant must show (1)

that his counsel’s performance was deficient, and (2) that the deficient performance prejudiced

the defense and deprived him of a fair trial. Strickland v. Washington,

, 104 Pickaway App. No. 13CA27

,

(1984); State v. Issa,

,

(2001);

State v. Goff,

,

(1998). “In order to show deficient

performance, the defendant must prove that counsel’s performance fell below an objective level

of reasonable representation. To show prejudice, the defendant must show a reasonable

probability that, but for counsel’s errors, the result of the proceeding would have been different.”

(Citations omitted.) State v. Conway,

,

,

. “Failure to establish either element is fatal to the claim.” State v. Jones, 4th Dist. Scioto No.

06CA3116,

. Therefore, if one element is dispositive, a court need not

analyze both. See Madrigal, 87 Ohio St.3d at 389,

(stating that a defendant’s

failure to satisfy one of the elements “negates a court’s need to consider the other.”). In Ohio,

there is a presumption that a properly licensed attorney is competent. State v. Calhoun,

,

(1999).

{¶ 38} In her first assignment of error, Collins argues that her trial counsel failed to

object to the eyewitness identification or request special jury instructions concerning eyewitness

reliability. Collins contends these errors constituted ineffective assistance of counsel.

{¶ 39} First, in our discussion regarding Collins’s first assignment of error, we

determined that the in-court identifications were not unreliable as to result in a substantial

likelihood of misidentification. Therefore, Collins cannot prove that if her trial counsel had

objected to the identifications, the outcome would have been different. This argument then fails

under the second prong of the Strickland test. We are aware that the “clearly would have been

different” language used in plain error analysis establishes a slightly greater burden than the

“reasonable probability” language used in evaluating ineffective assistance claims. Nonetheless,

we conclude that Collins has still failed to prove the outcome would have been different. Pickaway App. No. 13CA27 17

{¶ 40} Second, Collins argues that her trial counsel should have requested a special jury

instruction regarding the unreliability of eyewitnesses. Collins specifically cites to the decision

of United States v. Telfaire,

, (D.C.Cir. 1972). The Telfaire instruction

instructs the jury to consider, inter alia, “the capacity and opportunity of the witness to observe

the defendant; the identification being or not being the product of the witness's own recollection,

given the strength of the identification and the circumstances under which it was made; the

inconsistent identifications that may have been made by the witness; and the general credibility

of the witness. State v. Witherspoon, 8th Dist. Cuyahoga No. 94475,

, ¶ 23 citing

State v. Guster,

,

(1981).

{¶ 41} According to the Supreme Court of Ohio, the legal standard for the inclusion of

the instruction is as follows:

The determination of whether a cautionary instruction of the type in question

should be given will, therefore, depend in large measure on whether a resolution

by the jury of the disputed issues in the case requires or will be clearly assisted by

the instruction. It is obvious that such determination cannot be directed by a

general rule, but must be decided upon the particular facts of the case by the

exercise of sound discretion.

.

{¶ 42} Here, the trial court did give a general instruction regarding the credibility of

witnesses, specifically stating:

TO DETERMINE THE CREDIBILITY OF WITNESSES, YOU WILL APPLY

THE TESTS OF TRUTHFULNESS THAT YOU ARE ACCUSTOMED TO

APPLY IN YOUR DAILY LIVES. Pickaway App. No. 13CA27 18

YOU MAY CONSIDER THE APPEARANCE OF THE WITNESSES UPON

THE STAND; THE MANNER OF TESTIFYING; THE REASONABLENESS

OF THE TESTIMONY; THE OPPORTUNITY EACH WITNESS HAD TO SEE,

HEAR, AND KNOW THE THINGS CONCERNING WHICH HE OR SHE

TESTIFIED; ACCURACY OF MEMORY; FRANKNESS OR LACK OF IT;

INTELLIGENCE, INTEREST, AND BIAS, IF ANY; TOGETHER WITH ALL

THE FACTS AND CIRCUMSTANCES SURROUNDING THE TESTIMONY.

APPLYING THESE TESTS, YOU WILL ASSIGN TO EACH WITNESS SUCH

WEIGHT AS YOU DEEM PROPER

{¶ 43} Once again referring back to our discussion regarding the testimony of Brumfield

and Smith, we did not find the in-court identifications unreliable. The facts here do not

demonstrate a level of confusing or conflicting eyewitness statements leading a court to decide

that the special instruction should have been given. See e.g. State v. Dale,

,

(1982). The jury instruction as given did inform the jury how to evaluate

witness credibility. We do not find that the facts of this case presented a situation where the

special instruction would have resulted in a different outcome to the case’s disposition.

Therefore, we cannot find that Collins’s trial counsel was ineffective in failing to request the

special instruction. We overrule Collins’s second assignment of error.

{¶ 44} In her fourth assignment of error, Collins argues that her trial counsel was

ineffective when he failed to timely object to the trial court’s erroneous imposition of

consecutive sentences. However, due to our decision regarding Collins’s third assignment of

error that she is entitled to a new sentencing hearing, we find this assignment of error to be

rendered moot. It is therefore overruled. See App.R. 12(A)(1)(c); State v. Panning, 3rd Dist. Van Pickaway App. No. 13CA27 19

Wert No. 151307,

; State v. Clay, 12th Dist. Madison No. CA201112016,

, ¶ 31.

{¶ 45} In her fifth assignment of error, Collins argues that the cumulative effect of her

trial counsel’s errors resulted in the denial of the constitutional right to effective assistance of

counsel. “Before we consider whether ‘cumulative errors' are present, we must first find that the

trial court committed multiple errors.” State v. Wharton, 4th Dist. Ross No. 09CA3132, 2010

Ohio–4775, at ¶ 46, citing State v. Harrington, 4th Dist. Scioto No. 05CA3038,

, citing State v. Goff,

,

(1998).

{¶ 46} Collins contends that the result of counsel’s failures to object to the identification

procedures, the failure to request the special jury instructions and the failure to object to the

imposition of consecutive sentences resulted in an unfair trial and sentence. However, as

previously discussed we do not find that defense counsel’s failure to object to the identification

procedures or the failure to request the special jury instructions resulted in ineffective assistance

of counsel. The failure to object to Collins’s sentencing is a moot issue, now that this case will be

remanded for resentencing. Therefore, we cannot find that the cumulative error doctrine applies

here. Accordingly, Collins’s fifth assignment of error is overruled.

{¶ 47} In conclusion, we overrule Collins’s first, second, fourth and fifth assignments of

error. We sustain Collins’s third assignment of error, reverse the sentence and remand this cause

to the trial court for resentencing.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART AND THE CAUSE REMANDED. Pickaway App. No. 13CA27 20

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED. Appellee shall pay the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Pickaway County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earliest of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty- five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Abele, P.J.: Concurs in Judgment and Opinion. McFarland, J.: Concurs in Judgment Only as to Assignments of Error I, II, IV, and V and Dissents as to Assignment of Error III.

For the Court

By: Marie Hoover, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.